1 

UNITED STATES DISTRICT COURT 

 SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

JAMES A. TONKOVICH, et al., 

 

 Plaintiffs, 

 Case No. 2:12-cv-38 

 v. JUDGE GREGORY L. FROST 

 Magistrate Judge Elizabeth P. Deavers 

GULFPORT ENERGY CORPORATION, 

 Defendant. 

 

 OPINION AND ORDER

 This matter is before the Court for consideration of the following sets of filings: 

(1) Plaintiffs’ motion for summary judgment (ECF No. 25), Defendant’s 

memorandum in opposition (ECF No. 31), and Plaintiffs’ reply memorandum (ECF No. 33); and 

(2) Defendant’s motion for summary judgment (ECF No. 26), Plaintiffs’ 

memorandum in opposition (ECF No. 32), and Defendant’s reply memorandum (ECF No. 34). 

For the reasons that follow, the Court finds only Defendant’s motion well taken. 

I. Background

 Plaintiffs James and Betty Tonkovich, together with Plaintiff Arlin Corporation (solely 

owned by James), own approximately 850 acres of in Belmont County, Ohio. Plaintiffs belong 

to a group of landowners known as Belmont Leasing Group, which leases land for oil and gas 

exploration. In July 2011, Plaintiffs executed three oil and gas leases with Defendant, Gulfport 

Energy Corporation. Defendant subsequently recorded the three leases in the Belmont County 

Recorder’s Office on July 27, 2011. 

Case: 2:12-cv-00038-GLF-EPD Doc #: 35 Filed: 12/28/12 Page: 1 of 9 PAGEID #: <pageID>
2 

 On December 14, 2011, Plaintiffs filed a five-count complaint in the Belmont County 

Court of Common Pleas. (ECF No. 2.) The complaint asserts claims for fraudulent inducement, 

failure to pay consideration, failure to pay signing bonuses within specified calendar days, failure 

to pay signing bonuses within specified business days, and failure to consider a right of first 

refusal provision in the leases. Plaintiffs seek declaratory judgment that the leases are void and 

therefore unenforceable. Defendant removed the action to this Court on January 13, 2012. (ECF 

No. 1.) Both sides filed motions for summary judgment, which are ripe for disposition. (ECF 

Nos. 25, 26.) 

II. Discussion

A. Standard involved

 Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if the 

movant shows that there is no genuine dispute as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The Court may therefore grant a motion 

for summary judgment if the nonmoving party who has the burden of proof at trial fails to make 

a showing sufficient to establish the existence of an element that is essential to that party’s case. 

See Muncie Power Prods., Inc. v. United Tech. Auto., Inc., 328 F.3d 870, 873 (6th Cir. 2003) 

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 

 In viewing the evidence, the Court must draw all reasonable inferences in favor of the 

nonmoving party, which must set forth specific facts showing that there is a genuine issue of 

material fact for trial. Id. (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986)); Hamad v. Woodcrest Condo. Ass’n, 328 F.3d 224, 234 (6th Cir. 2003). A 

Case: 2:12-cv-00038-GLF-EPD Doc #: 35 Filed: 12/28/12 Page: 2 of 9 PAGEID #: <pageID>
3 

genuine issue of material fact exists “if the evidence is such that a reasonable jury could return a 

verdict for the nonmoving party.” Muncie, 328 F.3d at 873 (quoting Anderson v. Liberty Lobby, 

Inc., 477 U.S. 242, 248 (1986)). Consequently, the central issue is “ ‘whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it is so one-sided 

that one party must prevail as a matter of law.’ ” Hamad, 328 F.3d at 234-35 (quoting Anderson, 

477 U.S. at 251-52). 

B. Analysis 

 1. Counts One & Five 

 Plaintiffs do not pursue summary judgment on Counts One and Five in their motion for 

summary judgment. In contrast, Defendant does ask for summary judgment on these counts in 

its motion. Plaintiffs fail to offer a substantive defense of these claims in their memorandum in 

opposition and instead state: 

 The defendant listed all five counts of plaintiffs [sic] complaint in their 

[sic] motion for summary judgment. There has not been adequate discovery to 

determine whether Count 1, which dealt with non-disclosure of the value of the 

leases, and Count 5, which dealt with the refusal of [Defendant] to consider a 

provision in the lease entitled “right of first refusal.” Both of those counts deal 

with issues which have not been fully developed at this time, thus, summary 

judgment is not proper at this time. Therefore, this response will concentrate on 

those sections of defendants [sic] motion dealing with non[-]payment of the 

leases. The determination of the payment or non[-]payment of consideration for 

the leases is the defining issue before the court. Should the court find summary 

judgment on that issue in favor of the plaintiff[s], the other issues in the complaint 

are moot. 

(ECF No. 32, at 3.) This attempt at evading summary judgment necessarily fails. 

 Discovery in this case closed on July 31, 2012. See ECF No. 9, at 3. Plaintiffs never 

sought an extension of time for additional discovery from this Court. Nor have Plaintiffs 

Case: 2:12-cv-00038-GLF-EPD Doc #: 35 Filed: 12/28/12 Page: 3 of 9 PAGEID #: <pageID>
4 

actually invoked Federal Rule of Civil Procedure 56(d) or even hinted at circumstances that 

would prove sufficient under that rule. Rather, Plaintiffs have elected to simply present a 

conclusory statement that summary judgment is not warranted on two counts based on 

undisclosed and apparently unknown facts. This cannot provide Plaintiffs the refuge they seek. 

 Plaintiffs’ refusal to address the substance of Counts One and Five and Defendant’s 

motion amounts to abandonment of the claims. See Hicks v. Concorde Career Coll., 449 F. 

App’x 484, 487 (6th Cir. 2011) (holding that a district court properly declines to consider the 

merits of a claim when a plaintiff fails to address it in a response to a motion for summary 

judgment); Clark v. City of Dublin, 178 F. App'x 522, 524–25 (6th Cir. 2006) (recognizing that 

the failure to respond properly to motion for summary judgment arguments constitutes 

abandonment of a claim); Conner v. Hardee’s Food Sys., 65 F. App'x 19, 24–25 (6th Cir. 2003) 

(stating that a plaintiff's failure to brief a claim in the district court is an abandonment of the 

claim); Campbell v. Nally, No. 2:10-cv-1129, 2012 WL 4513722, at *12 (S.D. Ohio Oct. 1, 

2012) (holding that a perfunctory statement in a summary judgment memorandum in opposition 

that “material facts remain in dispute” in regard to claims amounts to abandonment of those 

claims); Murphy v. Ohio State Univ., No. 2:11-cv-238, 2012 WL 4499027, at *4 (S.D. Ohio 

Sept. 28, 2012) (explaining that a plaintiff’s failure to present actual argument on a claim in a 

memorandum in opposition constitutes abandonment of that claim); Colston v. Cleveland Pub. 

Library, No. 1:12–CV–204, 2012 WL 3309663, at *2 n.2 (N.D. Ohio Aug. 13, 2012) (deeming a 

claim abandoned and granting summary judgment when a plaintiff “did not respond or even 

mention [the] claim in her oppositions to Defendants' motions for summary judgment”); Thomas 

Case: 2:12-cv-00038-GLF-EPD Doc #: 35 Filed: 12/28/12 Page: 4 of 9 PAGEID #: <pageID>
5 

v. Starbucks Corp., No. 3:10–1158, 2012 WL 1900919, at *4 (M.D. Tenn. May 24, 2012) 

(holding that a district court can decline to consider a claim's merits when a plaintiff fails to 

address the claim in a summary judgment response); EEOC v. Home Depot USA, No. 4:07-cv143, 2009 WL 395835, at *17 (N.D. Ohio Feb. 17, 2009) (“When a plaintiff asserts a claim in a 

complaint but then fails to delineate that claim in her brief in opposition to summary judgment, 

that claim is deemed abandoned.”); Anglers of the Au Sable v. United States Forest Serv., 565 F. 

Supp. 2d 812, 839 (E.D. Mich. 2008) (“It is well settled that abandonment may occur where a 

party asserts a claim in its complaint, but then fails to address the issue in response to an 

omnibus motion for summary judgment.”). Summary judgment for Defendant on Counts One 

and Five is therefore appropriate. 

 2. Count Two 

 Plaintiffs argue that they are entitled to summary judgment because the leases were never 

finalized. They offer several reasons in support of this argument, beginning with the contention 

that Defendant failed to pay consideration due under the leases. Each order of payment involved 

provides that Defendant “shall pay an initial non-refundable consideration in the amount of $1.00 

per parcel of property listed on the Lease.” (ECF No. 1-2, at 13.) The lease language tracks the 

payment of this consideration. See, e.g., ECF No. 1-2, at 3 (“WITNESSETH, that for and in 

consideration of One Dollar ($1.00) and other good and valuable consideration . . . .”). 

The parties agree that Defendant never paid Plaintiffs $1.00 per acre. Plaintiffs argue that 

the leases Plaintiffs signed were nothing more than offers by Plaintiffs that Defendant could 

reject for any reason and that because consideration is essential to the formation of a contract, the 

Case: 2:12-cv-00038-GLF-EPD Doc #: 35 Filed: 12/28/12 Page: 5 of 9 PAGEID #: <pageID>
6 

non-payment of consideration means that there was no lease. 

 Defendant counters that although Ohio recognizes that a lease is a contract subject to 

traditional contract law, the state law also provides that nonpayment of nominal consideration 

does not void a lease. There is a surprising relative dearth of Ohio case law on this point, but 

Defendant has correctly identified one court of appeals case that holds that 

nonpayment of nominal consideration, in the form or a single dollar, where the 

contract recites such in addition to “other good and valuable consideration,” . . . 

will not constitute breach, at least in instances where the actual value of the 

subject of the contract does not, in fact, correspond to the nominal consideration. 

Bennett v. American Elec. Power Service Corp., No. 01AP-39, 2001 WL 1136150, at *5 (Ohio 

Ct. App. 10th Dist. Sept. 27, 2001). This holding informs today’s decision. Defendant’s failure 

to pay the nominal amount of $1.00 per acre therefore does not void the leases at issue. 

Defendant is entitled to summary judgment on Count Two. 

 3. Counts Three & Four 

 In Count Three, Plaintiffs assert that Defendant violated the term that Defendant would 

pay a specified sum to Plaintiffs on the two individual leases within 90 days of the signing of the 

leases. Plaintiffs then similarly assert in Count Four that Defendant failed to meet the 

requirement that it pay Arlin Corporation a specified sum within 90 business days. Plaintiffs 

argue that summary judgment in their favor is appropriate because Defendant failed to pay this 

“other good and valuable consideration” as contemplated in the agreements. 

 Defendant in turn argues that it complied with the relevant provisions, incorporated into 

the lease by reference, that state that Defendant “shall then have ninety (90) business days from 

the effective date of Lease . . . to tender payment of signing bonus as stated below.” (ECF No. 1-

Case: 2:12-cv-00038-GLF-EPD Doc #: 35 Filed: 12/28/12 Page: 6 of 9 PAGEID #: <pageID>
7 

2, at 13.) A subsequent provision—the “below”—then provides that Defendant would pay a 

specified sum “WITHIN 90 BUSINESS DAYS FROM THE EFFECTIVE DATE OF THIS 

LEASE.” (Id.) 

 The effective date of the leases was July 1, 2001. Ninety business days from that date 

was November 7, 2011. In October 2011, Defendant sent two Federal express envelopes to the 

Tonkoviches jointly and to James Tonkovich individually. Plaintiffs refused acceptance of these 

envelopes. The undisputed evidence is that these envelopes contained payments for the sums 

due on the individual leases. Plaintiffs’ argument that they thought they would be paid within 90 

calendar days contravenes the express terms of the lease and a communication by their own 

counsel as to when they would be paid. Plaintiffs thus simply avoided payment and now 

dubiously seek to invoke non-payment to avoid the individual leases. 

 Similar maneuvering surrounds the payment due in relation to the Arlin Corporation 

lease. As part of the lease agreement, Plaintiffs agreed to execute any paperwork or forms 

necessary to complete the transaction. Plaintiffs failed, however, to complete that portion of a 

W-9 supplied in regard to the Arlin Corporation lease that would have communicated to 

Defendant the Employer Identification Number of the corporation. Defendant called the 

corporation twice before the expiration of the 90-day payment period to obtain a completed form 

that included the number. Although Plaintiffs point out that “[t]here is no language in the lease 

or the Order of Payment that gives [Defendant] the option of not paying the bonus payment to 

Arlin Corporation because it did not have the Taxpayer ID number” (ECF No. 33, at 5-6), this 

argument conveniently ignores both the necessity for this number for “final approval by 

Case: 2:12-cv-00038-GLF-EPD Doc #: 35 Filed: 12/28/12 Page: 7 of 9 PAGEID #: <pageID>
8 

[Defendant’s] management to tender payment” (ECF No. 1-2, at 39) and the duty on Plaintiffs to 

provide necessary paperwork to carry out the purpose of the lease (Id. at 30). Thus, although 

Plaintiffs are correct that there is no language in the lease or the incorporated order of payment 

terms expressly calling for the provision of the taxpayer number as precedent to payment, 

Plaintiffs are incorrect that the lease language did not permit Defendant to require sufficient 

paperwork in order to approve tendering any such payment. 

 Disregarding the attempted payment on the individual leases and the pursuit of payment 

on the corporation lease, Plaintiffs argue that the leases were never “finalized.” They assert that 

they never interfered with attempted payment, stating that their “refusal of certified mail, when 

they believed the leases were no longer valid does not constitute interference.” (ECF No. 33, at 

3-4.) This is of course incorrect. Whatever Plaintiffs may or may not have actually believed, 

their refusal to accept payment (regardless of whether they knew what was in the envelopes) and 

obstructive refusal to provide information necessary to effectuate proper payment do not present 

conduct by Defendant that violates the leases. Instead, these facts present conduct by Plaintiffs 

that prevented culmination of payment. Plaintiffs’ repeated references in the briefing to 

Defendant making “only” one attempt to make payment illogically ignores the legal consequence 

of the fact that Defendant attempted to make payment. Plaintiffs attempt to argue that Defendant 

failed to make payment when Plaintiffs’ own actions prevented successful payments. 

Plaintiffs also point out that there is no written evidence that Defendant attempted to 

contact the Tonkoviches or Arlin Corporation to effectuate payment following the declined mail 

and the discovery of the incomplete W-9 form. This best evidence or best practices argument 

Case: 2:12-cv-00038-GLF-EPD Doc #: 35 Filed: 12/28/12 Page: 8 of 9 PAGEID #: <pageID>
9 

fails to entitle Plaintiffs to summary judgment, to present an issue of material fact, or to preclude 

summary judgment for Defendant. The deposition testimony referenced in the briefing and filed 

with this Court constitutes uncontroverted evidence of the conduct of the parties surrounding 

payment. A better paper trail by Defendant would have been cleaner; the absence of such a 

paper trail does not provide Plaintiffs the cover they contend. 

Because Defendant attempted to comply with the lease payment provisions requiring 

tender and actual payment was only defeated by Plaintiffs’ own conduct, summary judgment is 

warranted for Defendant on Counts Three and Four. 

III. Conclusion

For the foregoing reasons, the Court DENIES Plaintiffs’ motion for summary judgment 

(ECF No. 25) and GRANTS Defendant’s motion for summary judgment (ECF No. 26). The 

Clerk shall enter judgment accordingly and terminate this action on the docket records of the 

United States District Court for the Southern District of Ohio, Eastern Division. 

IT IS SO ORDERED. 

 /s/ Gregory L. Frost 

 GREGORY L. FROST 

 UNITED STATES DISTRICT JUDGE 

Case: 2:12-cv-00038-GLF-EPD Doc #: 35 Filed: 12/28/12 Page: 9 of 9 PAGEID #: <pageID>